(208 Fed. 143) BECHARIAS v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. April 15, 1913. Rehearing Denied July 1, 1913.) No. 1,872. 1. BRIBERY (§ 1*)-IMMIGRATION OFFICERS "OFFICER." Under the law and regulations of the Department of Commerce and Labor, an immigration inspector is an "officer" of the United States, and his act in recommending a rehearing for an alien under order of deportation is an act in the line of his duty, so that the offering of a bribe to him to induce the making of a recommendation for a rehearing constitutes an offense against the United States. [Ed. Note. For other cases, see Bribery, Cent. Dig. §§ 2, 3; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 6, pp. 4933-4951; vol. 8, p. 7737.] 2. ALIENS (§ 54*)—DeporTATION-"PENDING PROCEEDING." Until an alien has been actually deported, and while it is within the power of the Department of Commerce and Labor to grant a rehearing, the proceeding is "pending" within the law. [Ed. Note. For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. $ 54.* For other definitions, see Words and Phrases, vol. 6, p. 5279.] In Error to the District Court of the United States for the Northern District of Illinois; Kenesaw M. Landis, Judge. George Becharias was convicted of offering a bribe to an immigration inspector, and he brings error. Affirmed. Haynie R. Pearson and Charles H. Soelke, both of Chicago, Ill., for plaintiff in error. James H. Wilkerson, U. S. Atty., Robert W. Childs and Walter M. Krimbill, Asst. U. S. Attys., and Lin W. Price, all of Chicago, Ill., for the United States. Before BAKER and KOHLSAAT, Circuit Judges, and HUMPHREY, District Judge. HUMPHREY, District Judge. Plaintiff in error was indicted, convicted, and sentenced to the penitentiary for offering and giving $150 as a bribe to one Plumly, an immigration inspector, to induce him to make a recommendation based on false testimony for a rehearing in the case of one Kosmos, then under order of deportation by the Secretary of Commerce and Labor; said order being addressed to the Commissioner of Immigration. [1, 2] Under the law and the regulations of the department, which have the force of law, Plumly was an officer of the United States, and to make recommendation for or against a rehearing for an alien under order of deportation was in the line of his official duty. Until the man was actually deported, and while it was in the power of the de*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes partment to grant a rehearing, the proceeding was "pending" within the meaning of the law. We find no error in the rulings of the trial court either on the sufficiency of the indictment or in the admission or rejection of evidence. Affirmed. (208 Fed. 144) TALBOTT v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. October 6, 1913. Rehearing Denied October 29, 1913.) LUTION-VALIDITY. 1. NEUTRALITY LAWS (§ 2*)-CONTRABAND GOODS-EXPORTATION-JOINT RESOJoint Resolution No. 10, March 14, 1912, 37 Stat. 630, making it unlawful to export arms or munitions of war from the United States to an American country in which the President has proclaimed that he finds conditions of domestic violence exist, which are promoted by the use of arms or munitions of war procured from the United States, is valid. [Ed. Note. For other cases, see Neutrality Laws, Cent. Dig. § 3; Dec. Dig. § 2.* Object and scope of neutrality law, see note to Hart v. United States, 28 C. C. A. 622.] 2. CRIMINAL LAW (§ 622*)-Severance-DISCRETION. Under federal law severance in criminal cases is within the discretion of the trial court. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1380-1383, 1385, 1386, 1388-1390; Dec. Dig. § 622.*] 3. WITNESSES (§ 52*)-HUSBAND AND WIFE-COMPETENCY OF WIFE. At common law the wife of one of several defendants on trial at the same time cannot be called as a witness for or against any of them. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 124, 126-136, 165, 415-417, 419, 424; Dec. Dig. § 52.*] In Error to the District Court of the United States for the Western District of Texas; Waller T. Burns, Judge. John S. Talbott was convicted of violating the Neutrality Laws, and he brings error. Affirmed. J. A. Gillett and C. C. McDonald, both of El Paso, Tex., and Wm. L. Evans, of Ft. Worth, Tex., for plaintiff in error. Chas. A. Boynton, U. S. Atty., of Waco, Tex. Before PARDEE and SHELBY, Circuit Judges, and FOSTER, District Judge. PER CURIAM. [1] We are compelled to affirm the judgment in this case. The validity of the joint resolution No. 10, of March 14, 1912, 37 Stat. 630, as a criminal statute, has been recognized by the Supreme Court in United States v. Chavez, 228 U. S. 525, 33 Sup. Ct. 595, 57 L. Ed. 950, and United States v. Mesa, 228 Ú. S. 533, 33 Sup. Ct. 597, 57 L. Ed. 953. [2] Under federal law severance in criminal cases is a matter within the discretion of the court. United States v. Marchant & Col*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes son, 12 Wheat. 481, 6 L. Ed. 700. See United States v. Ball, 163 U. S. 672, 16 Sup. Ct. 1192, 41 L. Ed. 300. [3] Under the common law the wife of one of several defendants on trial at the same time cannot be called as a witness for or against any of them. 1 Greenleaf's Ev. § 334; Lucas v. Brooks, 18 Wall. 436, 453, 21 L. Ed. 779; Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165, 34 L. Ed. 762. For a case directly in point, see Reg v. Thompson, 12 Cox's Criminal Cases, 202. The judgment of the District Court is affirmed. (208 Fed. 145) PENNSYLVANIA R. CO. v. CARBON COAL & COKE CO. (Circuit Court of Appeals, Third Circuit. December 4, 1913.) Nos. 1625-1629. In Error to the District Court of the United States for the Eastern District of Pennsylvania; James B. Holland, Judge. Consolidated actions at law by John Langdon, by the Carbon Coal & Coke Company, by the Mt. Equity Coal Company, by J. Herbert Sweet and others, executors, and by E. Eichelberger & Co. against the Pennsylvania Railroad Company. Judgments for plaintiffs, and defendant brings error. Reversed. See, also, 186 Fed. 237, and 194 Fed. 486. John Hampton Barnes, of Philadelphia, Pa., for plaintiff in error. Harry Cessna, J. W. M. Newlin, and Graham & Gilfillan, all of Philadelphia, Pa., for defendants in error. Before GRAY, BUFFINGTON. and MCPHERSON, Judges. Circuit GRAY, Circuit Judge. When these cases were called for argument, counsel agreed at bar that (in view of recent decisions by the Supreme Court upon the measure of damages in this class of cases) the instructions and rulings by the District Court upon that subject were erroneous. It is therefore ordered that in each of the foregoing cases the judgment be reversed, upon this ground alone-no other question being considered or decided by this court. (208 Fed. 145) JOHNSTON et al. v. SOUTHERN WELL WORKS CO. et al. 1. EVIDENCE (§ 174*)-BEST EVIDENCE-PROOF OF ASSIGNMENT OF PATENT— COPY OF RECORD. Where complainant in a suit for infringement alleges title to the patent by assignment, which allegation is denied, it cannot be proved by an abstract showing the record of an assignment in the Patent Office, but either the original instrument or a proved copy should be produced. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 561-564, 566– 569; Dec. Dig. § 174.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 2. PATENTS (§ 202*)-SUIT FOR INFRINGEMENT-TITLE TO SUSTAIN. An assignment of a patent does not convey the right to recover for past infringements. [Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 281-289; Dec. Dig. § 202.*] Appeal from the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge. Suit in equity by Horace G. Johnston, Charles Rittersbacher, and Emlin H. Akin, copartners as the American Well & Prospecting Company, against the Southern Well Works Company, the Southern Car Manufacturing & Supply Company, the Parker Forge Works, and James A. Wiggs. Decree for defendants, and complainants appeal. Affirmed. F. D. Minor, of Beaumont, Tex., and L. L. Morrill, of Washington, D. C., for appellants. Wm. G. Henderson, of Washington, D. C., for appellees. Before PARDEE and SHELBY, Circuit Judges, and GRUBB, District Judge. PER CURIAM. The complainants sue for the infringement of patent No. 779,285, issued January 3, 1905, to Horace G. Johnston, for an improvement in well-sinking apparatus, and they allege that on November 11, 1908, said Johnston assigned to them his right, title, and interest in and to said patent and in and to the invention disclosed therein. The alleged assignment was specifically denied in the answer. The only evidence offered to prove the said assignment was an abstract showing the record of an assignment in the Patent Office; neither the original instrument nor a proved copy was offered in evidence. See American Graphophone Co. v. Leeds & Catlin Co. et al. (C. C.) 140 Fed. 981; Eastern Dynamite Co. v. Keystone Powder Mfg. Co. (C. C.) 164 Fed. 49. The only infringement alleged or sought to be proved in the case was the sale by the Southern Well Works Company about May, 1907, to one S. H. Clement of a well-sinking apparatus advertised as "A Parker Rotary," antedating by over 20 months the alleged assignment of the patent to the plaintiffs. Moore v. Marsh, 7 Wall. 515, 522, 19 L. Ed. 37; Jones v. Berger et al. (C. C.) 58 Fed. 1006; Superior Drill Co. v. Ney Mfg. Co. (C. C.) 98 Fed. 734; Canda Bros. v. Michigan Malleable Iron Co., 152 Fed. 178, 81 C. C. A. 420. The decree of the District Court is affirmed. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes (207 Fed. 915) NATIONAL ELECTRIC SIGNALING CO. et al. v. FESSENDEN. (Circuit Court of Appeals, First Circuit. August 22, 1913. Rehearing Denied October 20, 1913.) No. 999. 1. CORPORATIONS (§ 187*)-AGREEMENTS BETWEEN STOCKHOLDERS-CONSTRUC TION. Plaintiff and W. transferred certain patents, etc., to a corporation in exchange for all of its stock. They subsequently transferred a majority of the stock under an agreement that they should be paid therefor $300,000 out of the profits of the company before any dividends should be declared. The majority stockholders had advanced large sums of money to the corporation, for which they held interest-bearing notes, and plaintiff became dissatisfied because the amount due him did not also bear interest. One of the majority stockholders, who was also a director, prepared an agreement stating that plaintiff demanded that the $300,000 be put on an equal basis to that advanced on the notes, that he agreed to that proposition and thought the best way to do this was by the issue of 6 per cent. preferred stock, to be repurchased by the company out of surplus as accumulated, that plaintiff was to receive a specified salary, that the majority stockholders would make other advances as needed, that all questions of policy in the company as to which differences might arise between the majority and a minority should be submitted to arbitration, and that the provision for issuing preferred stock should include all money payable by the company under its contracts. This agreement was signed by such majority stockholder and by plaintiff. Held, that this did not constitute an agreement by the corporation to assume an indebtedness to plaintiff of $300,000 or to put plaintiff's claim on an equal basis with the promissory notes, leaving the way of doing this open, but was an agreement between the stockholders to equalize their claims by advancing the claim of plaintiff and W. to the form of interest-bearing stock; the majority stockholders to waive their position as creditors by exchanging their notes for preferred stock, especially as the corporation could not require the majority stockholders to accept stock in exchange for the notes. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 702, 703; Dec. Dig. § 187.*] 2. CORPORATIONS (§ 174*)-STOCKHOLDERS-RELATION TO CORPORATION. Holders of preferred stock of a corporation are not creditors. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 649-652; Dec. Dig. § 174.*] 3. CONTRACTS (§ 47*)-CONSIDERATION-NECESSITY. Where the owners of all the stock of a corporation transferred a majority thereof under an agreement that they should be paid therefor out of the profits of the company before any dividends should be declared, the corporation, not being indebted to the sellers of the stock, could not assume the payment of the debt due them without a consideration. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 220, 221, 256258; Dec. Dig. § 47.*] 4. CONTRACTS (§ 75*) — CONSIDERATION BILITY. SUFFICIENCY-ASSUMPTION OF LIA Plaintiff and another, owning all the stock of a corporation, transferred a majority under an agreement that they should be paid therefor out of the profits of the company before any dividends should be declared. The purchasers of this stock had advanced large sums of money to the corporation, for which they held interest-bearing notes. Plaintiff becoming dissatisfied because the amount due him did not also bear interest, an *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |